I noted this case when it was decided by the Court of Appeal in August. According to the Court of Appeal, the problem is created when attorneys from the Attorney General’s office serve both as “prosecutors” and “legal advisors” to the board, albeit not in the same case. Nonetheless, since the board is in the position of relying on the deputy attorney general’s legal advice in one case, parties appearing before the board with that same deputy attorney general serving as prosecutor may understandably question the fairness of the proceeding. If the board relies on that attorney for legal guidance, will it give special credence to his or her legal position as a prosecutor?

The California Supreme Court’s press release lists the issue for review in the case as follows: “May a staff attorney for an administrative agency serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter, without violating the due process rights of the parties that appear before the agency.”

Stuart Somach of Somach, Simmons & Dunn (Sacramento) represents the plaintiff in the case and Deputy Attorney General Matthew Goldman is listed as lead attorney representing the Board. Review was granted on October 24, 2007.

As I noted in my earlier post, this is a significant case in state administrative law. Generally, one cannot state a due process objection based solely on an “appearance” of impropriety in an administrative proceeding, but must instead establish an actual conflict. If the Court of Appeal decision is upheld, a number of California agencies will have to alter their practices.